A series of anonymous political flyers issued before the March primary has prompted debate surrounding free speech and questions about the future of McHenry County campaign tactics.
McHenry County Recorder Joe Tirio knows his attempts to file a defamation suit in response to unflattering campaign mailers could affect the climate of future elections – not by forcing opponents to walk on eggshells, rather, by encouraging them to think before they speak, he said.
“I think it will make people look at these things a little differently, that they have to be a little more critical of them and perhaps cause them to engage with their candidates a little bit more,” Tirio said.
Tirio and Woodstock attorney Phil Prossnitz are confident they’re close to identifying the flyers’ creators.
Generally speaking, however, defamation cases don’t shake out so easily, especially in the political arena, said Rebecca Glenberg, senior staff attorney at the ACLU of Illinois.
“For any public figure who sues for defamation, it’s an extremely high bar. And if you add to that the fact that this is political speech and campaign speech that is at the core of the First Amendment, that just adds to the difficulty,” Glenberg said. “The courts are really reluctant to get involved in that sort of dispute because the political process requires people to be free to speak as much as possible.”
Attorneys met Friday morning to discuss Tirio’s hopes to unveil an anonymous force known only as the Illinois Integrity Fund. Prossnitz is attempting to use a Supreme Court rule that would allow him to question Tirio’s opponent in the race for county clerk, Janice Dalton, and a Chicago company, Breaker Press, for possible leads.
Last month, McHenry County Judge Kevin Costello rejected the bulk of Chicago attorney Natalie Harris’ argument that flyers depicting Tirio as a cartoon burglar with a “taxpayer-funded slush fund” were protected by the First Amendment.
Harris had argued the flyers were consistent with the “mudslinging” nature of politics, and that words such as “cronies” and “slush fund” were too vague to be considered defamatory.
Under the judge’s recommendation, Prossnitz filed a modified petition, claiming whoever is behind the flyers published them maliciously by not checking their claims against public records that might have debunked the accusations.
Harris will ask Costello next month to dismiss the new complaint, but Tirio is optimistic things will work out in his favor.
“I feel like we are in the commanding position on this,” Tirio said, adding it will likely “take years” for the situation to play itself out entirely.
Defamation lawsuits can have a more immediate effect on public figures’ reputations, Glenberg said, noting the potential to make politicians appear “thin-skinned,” or discourage the public from voicing their opinions.
“It’s true, just sort of as a general proposition, the more you punish speech, the more people will self-censor and not engage in speech other people deem to be unacceptable,” she said.
On the other hand, maliciously spreading false information can affect an election just as easily, she said.
“Speech is powerful, and it can be dangerous, and that’s true sort of across the board. That’s one of the reasons that we protect it because it is so powerful a tool, but that just comes with costs. It just does,” Glenberg said. “Because some speech is harmful. It requires us all to have a certain degree of civic responsibility about what we say about people.”
McHenry County Chairman Jack Franks has been a more public critic of Tirio’s practices, calling for a reduction in recorder’s fees and increased oversight of Tirio’s automation fund.
“With the culture of secrecy that permeates the Recorder’s Office – the $2.5 million surplus was never even listed on his monthly report to the County Board – the County Board and the taxpayers need assurance that public funds are not being inappropriately spent, and that Tirio is not overcharging customers by keeping his fees artificially high to pay for questionable expenses,” Franks said in a statement.
Tirio has denied misusing taxpayer money and said he hopes to encourage more thoughtful campaigns in the future.
“We’re going to get it done or be proven that it can’t be and that this is the new norm of political communications going forward,” Tirio said.
The case will pick back up Oct. 26.